Duhaime's Law Dictionary


Special prosecutor Definition:

A private lawyer who temporarily and on a case-by-case basis only, investigates or manages the prosecution in lieu of the public prosecutor.

Related Terms: District Attorney

Often, when another district attorney or Crown counsel is suspected of a crime, or a judge or some high-profile politician, the government will retain a private lawyer well-versed in criminal law to investigate or to assist in or even to manage the trial against such a suspect; this, all to avoid any conflict of interest that may affect a lawyer working within a public bureaucracy of a district attorney or Crown counsel office.

Each special prosecutor is given a specific mandate by the government, some to do-it-all in lieu of a district attorney; others to assist in identified areas of investigation.

In 1978, Justice Fogleman of the Arkansas Supreme Court wrote this in Owen:

"[A] special prosecuting attorney is clothed with the powers of the prosecuting attorney in the case or matters for which he is appointed, but he acts in his own name in the stead of, as a substitute for, the regularly elected prosecuting attorney, but not in his name."

Or in Guerra, Justice Yanez noted:

"[T]he terms attorney pro tem and special prosecutor ... are far from synonymous.

"A district attorney pro tem is appointed by the district court, and after taking the oath of office, assumes the duties of the elected district attorney and, in effect, replaces the latter in performing germane functions of office for purposes contemplated by the appointment.

"On the other hand, a special prosecutor is permitted by the elected district attorney to participate in a particular case to the extent allowed by the prosecuting attorney, without being required to take the constitutional oath of office."

REFERENCES:

  • In re Guerra, 235 SW 3d 392 (Texas Court of Appeals, 2007)
  • Owen v. State, 565 SW 2d 607

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